This is the second post on the Brainstorm subject, ‘The Future of the Indian Republic.’ You can read Amit Varma’s introductory post here. And here’s how Nitin Pai kicked off the discussion.
India is both a democracy and a republic, and they are not the same. A democracy and a republic have different functions and implications for the relationship between the individual and the state. A democracy is rule by the people, chosen by a majority of the group. While this is also true of the republican form of government, republicanism is more than merely the process of choosing the sovereign. The supreme republican values are individual liberty and independence from arbitrary power. A republican form of government, therefore, is intended to limit the excesses of democracy or majority rule. In India, however, democracy is cannibalizing republicanism.
Five Wolves and One Sheep
Despite enduring social hierarchies of the caste system, monarchy, and colonialism, Indians took surprisingly well to democracy. While novel in the 1950s, the idea of ‘one individual one vote’ has become deeply ingrained in the Indian ethos. Peaceful transition between governments is something Indians take for granted, which contrasts starkly with India’s neighboring countries that shared some of its colonial and cultural heritage. Indians routinely exercise their vote to overthrow governments, and the fear of anti-incumbency pressurizes legislators to perform. Most importantly, there is a shared belief in the system of free and fair elections.
Democracies are glorified as representing the ‘will of the people.’ In fact, democracies represent the will of some people, ideally a majority of the voters. Larry Flynt famously said that “majority rule only works if you’re also considering individual rights. Because you can’t have five wolves and one sheep voting on what to have for supper.”
Democratically elected governments face two different types of maladies. Where decision-making processes allow the majority to make rules, the majority can impose its preferences on the minority. Tocqueville’s warning about the tyranny of the majority is a salient problem. In India, the majority decides what one can and cannot eat, drink, wear, where one lives, what one does for a living, expression of sexual orientation, and how one expresses displeasure about any of these infringements on individual liberties.
Though counterintuitive, democracies are also simultaneously prone to capture by minority factions. Small and relatively homogeneous groups with shared interests organize at lower cost, and are often more effective at gathering political support. The first-past-the-post electoral system followed in India is conducive for this kind of interest group capture. This is now institutionalized and well accepted and pandering to minority groups even has its own catch phrase: vote bank politics. Much of caste politics in India involves a minority group redistributing benefits to its members through the government, often to the detriment of other groups. Interest group capture has thus institutionalized a new form of the caste system – through the democratic process. This is the exact opposite outcome of Ambedkar’s vision, of eliminating the caste system by giving every Indian an equal vote.
The average citizen is like sheep, oppressed by the majority and minority wolves. Beef bans and alcohol prohibition are passed by democratically-elected legislatures. Indian legislatures have banned seemingly innocuous jobs like working in a dance bar, hand pulling rickshaws, and placed restrictions on farming, to name a few of the numerous restrictions on choosing how one makes a living. A democratically elected parliament could not gather enough votes (on two separate occasions) to repeal section 377, leaving LGBT rights unprotected and unacknowledged. Indians don’t have any protection from the state taking property, nationalizing businesses, and laws making entire sectors of the economy off limits. One only enjoys freedom of expression as long as no one else is offended.
The list of arbitrary and excessive power of elected governments infringing on individual rights is quite long. This criticism is not limited to any particular ideology, group, or political party. The winners and losers of this churning state keep changing, but what is systematically eroded is individual liberty.
Indians have embraced democracy to such an extent that they have left its excesses unchecked. Ambedkar warned that “the purpose of a Constitution is not merely to create the organs of the state but to limit their authority, because, if no limitation was imposed upon the authority of the organs, there will be complete tyranny and complete oppression. The legislature may be free to frame any law; the executive may be free to give any interpretation of the law. It would result in utter chaos.”
And within this chaos of tyranny and oppression is a new type of order. One where there is no room for republicanism, but instead different groups fighting for the top spot.
But what about the Constitution?
How did we reach this state of affairs in India? Doesn’t the constitution check the excesses of democracy? Unfortunately, no. Most of the excesses of Indian democracy are permitted, and sometimes even recommended, by the constitution.
The constitution serves two distinct functions. First, it provides a structure for the functioning of the state. It details the powers and limits of each branch and level of government. These structural safeguards, such as bicameralism, federalism, and an independent judiciary check the power of democratically elected majorities, and create a system more likely to protect individual liberty.
The second function is directly protecting individual rights. The fundamental rights listed in Part III of the constitution were intended to limit state action and protect the individual from coercion. This part of the constitution exists to give concrete form to republican principles of individual liberty. In one sense, this part of the constitution is the most undemocratic. It limits the actions of democratically elected governments making decisions using majority rule. The fundamental rights tell us what democratically elected governments “shall not” do. They are worded to explicitly state that the State shall not deny any person equality before the law (Article 14), or that the State shall not discriminate on the basis of religion, race, caste, etc (Article 15).
Why haven’t these fundamental rights provided sufficient protection?
While the framers of our constitution created a structure of government to protect the individual, they were also concerned with social justice, removing the caste system, protecting women and rights of disenfranchised communities, etc. To balance these aspirations of individuals versus group rights, the framers wrote in some protections for groups, often requiring positive action by the state. In the process, they weakened fundamental rights by creating exceptions.
For every provision preventing discriminatory state action, there are numerous exceptions written into the fundamental rights. For instance, Article 15 states that the State shall not discriminate; but Article 15(4), one of the many exceptions, clarifies that this does not prevent the state from creating “special provision for the advancement of any socially and educationally backward classes.” These exceptions enable much of our caste politics, where the state provides jobs and reservations to specific groups. There are similar exceptions for women, children, scheduled castes, scheduled tribes, etc.
Similarly, constitutional protections for freedom of expression are subject to a ‘catch all’ exception which allows “reasonable restrictions” to safeguard “interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.” Given that virtually anything can be claimed to hurt one of these many exceptions, especially public order, decency or morality, it is no surprise that political, satirical, and comedic expressions are often suppressed swiftly and constitutionally. Academic research, books, movies, and paintings are routinely censored and banned.
Thus, fundamental rights were diluted because of numerous exceptions, right from the beginning. And these rights have further weakened since 1950. They are quite vulnerable to democratic excesses because these rights can be easily amended by parliament. Over seventy years, these rights have been systematically amended or deleted by democratically elected majorities. 22 constitutional amendments have directly amended about 35 different provisions relating to part III protecting our fundamental rights. Not one of these amendments strengthen the rights originally enshrined in the constitution and constrain Parliament. Instead these amendments create exceptions and enable legislation favoring specific majority or minority groups.
Given such weak protection by the constitutional framework, all sorts of arbitrary and discriminatory laws and orders are constitutionally allowed. The lack of protection of property enables our leaders to nationalize entire sectors of the economy (Indira Gandhi in 1970s) or eliminate 86% of the currency in a matter of hours (Narendra Modi in 2016). Censorship has been embraced by virtually every government, in different degrees. Even during the hallowed time of Nehru, Stanley Wolpert’s Nine Hours to Rama was banned in India. This trend has not diminished, only strengthened in recent times, with too many banned books to list. Worse still, is the increasing self-censorship out of fear of violence from fringe groups enabled by the government.
Almost all governments, on the left and the right, have contributed to this deterioration of constitutional constraints. Indira Gandhi famously said that “we should be vigilant to see that our march to progress is not hampered in the name of the Constitution.” Nehru argued that fundamental rights “represent something static, to preserve certain rights” and made a case to amend these rights in favor of socialist policies “which represent dynamic movement towards a certain objective.” Narendra Modi has called the constitution his “holy book” and has not yet formally amended these rights. But in practice his government (like prior governments) has taken advantage of these weakened fundamental rights; and his government’s actions routinely violate important constitutional principles.
While Indians live in a republic, they have only embraced the democratic way of life, and left republican values by the wayside.
Afraid to be free
The question that emerges is why the Indian electorate systematically allowed democracy to cannibalize individual freedoms? There is no simple way to answer to this question. These outcomes could be the unfortunate by-product of a fledgling democracy in the process of discovering its own system of shared values. Some political theorists would argue that our democracy is fundamentally ill-suited to protect freedoms and this kind of drift is both expected and natural in constitutional democracies. Or perhaps the problem is on the demand side – there simply isn’t enough of a political demand for our rights and freedoms.
I believe the problem is that most Indians don’t value individual freedom very high in their scheme of priorities. And even if such a demand exists, it has failed to gather a coalition across groups. The complacent rich and middle class in India have essentially bought their way out of much of the state’s coercion. A lot of the trade and business happens in the shadows of the informal economy to escape the state, and bribes are now included in the cost of doing business. Where the state bans beef, alcohol, books or movies, the rich enjoy these contraband goods in their ivory towers. The rich don’t need to protest because they are protected from the mobs enforcing these arbitrary rules by private security guards. Only the odd celebrity, or political opponent, becomes the target of mob rule.
The poor, unable to buy their way out of such coercion, are too busy battling a large and coercive state to make ends meet. They don’t have time to protest while they stand in long queues for various basic public services. They have little energy left to worry about constitutional protections while providing for their families. Even if there is a desire and demand for individual liberty, this state of affairs is hardly conducive to create a coalition demanding freedom. RK Laxman captured it best in his cartoons where the common man never speaks, and silently accepts the state minimizing his freedoms.
I am much more pessimistic about the Indian citizenry. I believe the average Indian is quite content with state interference in virtually every aspect of life, and perhaps even desires such dependency. Across all social and economic strata, I would argue, the average Indian is not interested in individual liberty and all the responsibilities that come with the rights and freedoms in civil society. Instead, the average Indian is vested in a paternalist state, and demands all forms of protections that come with paternalism. There is much evidence from history that Indians seek a mai baap that will benevolently bestow economic or cultural favors and create boundaries for acceptable areas of moral and social conduct. Even nicknames for political leaders reflect this expectation of protection from a family elder – Amma, Didi, Anna, Behenji, etc. A democratically elected mai baap legitimizes this kind of dependency, and the excesses of the paternalist. The only debate is the choice of the paternalist.
There is much to celebrate in the Indian republic. The fact that it exists, and has lasted, is remarkable. And having a fiercely democratic society is also some cause to rejoice. But the constitution has completely failed in protecting republicanism from democratic excesses. And given the lack of a strong coalition demanding individual freedoms, it is unlikely that democratic politics will help India reclaim individual rights and freedoms in the immediate future.
